EPA Final Rule Upends “Once-in, Always-in” Policy
On Oct. 1, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler signed a final rule that will officially upend the 1995 agency policy known as “Once-in, Always in.” Under the final rule, sources of hazardous air pollutants (HAP) previously classified as ‘major sources’ may now be reclassified as ‘area’ sources at any time, provided the facility limits its potential to emit below major source thresholds.
A “major source” is defined as a source that has the potential to emit (PTE) HAP up to 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAPs. Sources below this threshold are considered “area sources.” The previous EPA policy dating to 1995 was known as “once-in-always-in” because it mandated that even if facilities were able to reduce emissions below major source levels, they still had to comply with the more stringent major source requirements. It also bore the force of a regulation.
The final rule finds that EPA has no authority under the plain language of the Clean Air Act to limit when a facility may be determined to be an area source, and has been in the works since EPA released a memorandum in January 2018, rescinding its “once-in-always-in” policy.
ACA has advocated for withdrawal of this EPA policy for nearly two decades, including petitioning EPA staff to withdraw the guidance. Notably, when EPA was considering this step in late 2017, U.S. Senator John Barrasso (R-WY), chair of the Senate Committee on Environment and Public Works (EPW) and fellow EPW committee member Sen. Shelley Moore Capito (R-WV) quoted ACA in their letter to then-EPA Administrator Scott Pruitt asking him to withdraw the “once-in-always-in” policy. The letter quoted ACA testimony citing the onerous impact of the policy, and contention that “resources spent on compliance could be used instead for [research and development], or modernization activities.”
According to EPA’ s 2017 estimates, this final rule will result in significant cost savings when compared to the agency’s previous “once-in, always-in” policy. EPA estimates a potential cumulative savings of $16.1 million in the first year and $90.6 million (in 2017 dollars) in following years.
This ‘policy’ or ‘guidance’ had been applied by EPA as a ‘rule,’ with binding effects on the regulated community, including very burdensome compliance costs. In Congressional testimony, ACA noted that “this guidance is outdated and unnecessary and imposes a substantial burden on industry that well exceeds any benefits. Industry resources spent on compliance could be used instead for R&D, or modernization activities. This policy also acts as a disincentive for industry, since facilities have no incentive to voluntarily reduce HAP emissions below major source thresholds.”
For years, ACA repeatedly stressed to EPA, members of Congress, and the Department of Commerce, that the coatings manufacturing industry has substantially reduced the use of HAPs since the 1990s. In fact, many facilities subject to the Miscellaneous Coatings Manufacturing (MCM) and Miscellaneous Organic Chemical (MON) Manufacturing MACTs were actually “area source” facilities, but still had to comply with the burdensome MCM and MON requirements even though they are not major source facilities. While many coatings and resin manufacturing operations could reduce emissions prior to the first compliance date of the MCM and MON, other facilities could not. Facilities that were not able to reduce their emissions installed expensive thermal oxidation units.
Thermal oxidation units require a significant capital investment — millions of dollars per facility — and annual operation and maintenance costs: several hundred thousand dollars per facility per year in fuel cost alone. These units consume large amounts of electricity and natural gas, which results in additional emissions of carbon dioxide, nitrogen oxides and carbon monoxide. EPA has estimated that installation and operating of air pollution controls for the MCM and MON rules would require an overall energy demand increase of 5.83 trillion BTUs; a total capital expenditure of $184 million; yearly operating costs of nearly $91 million; and an increase in NOx, CO, SOx emissions of 987 tpy.
ACA hailed EPA’s final rule which will allow several coating, ink and adhesive and resin manufacturing and application operations to discontinue the use of very expensive add-on control devices.